Ajay Kumar alias Aju vs State of H.P.

Kuldip Singh, Judge

This revision is directed against judgment dated 20.9.2006 passed by learned Addl. Sessions Judge, Fast Track Court, Chamba in Cr. Appeal No. 4/05/03 affirming judgment, dated 1.7.2003/23.8.2003 passed by learned Chief Judicial Magistrate, Chamba in Cr. Case No. 84-1/2002 convicting and sentencing the petitioner to undergo simple imprisonment for two years and fine of Rs. 10, 000/- u/s 304A IPC, in default of payment of fine to further undergo simple imprisonment for three months, simple imprisonment for one year and fine of Rs. 1, 000/- u/s 338 IPC, in default of payment of fine to further undergo simple imprisonment for one month, simple imprisonment for six months and fine of Rs. 1, 000/- u/s 337 IPC, in default of payment of fine to further undergo simple imprisonment for one month, simple imprisonment for six months and fine of Rs. 500/- u/s 279 IPC, in default of payment of fine to further undergo simple imprisonment for fifteen days. The sentences were ordered to be run concurrently. The facts in brief are that on 6.11.2001 the petitioner was driving Jeep bearing No. HP-48-5578. He had given lift to some persons in the jeep. At Gajnuin bridge he could not control the jeep, it turned turtle on the bridge and caused injuries to persons who were working on the road as well as occupants of the jeep. The injuries were found simple and grievous in nature and on account of injuries one Mohan died. The accident was caused due to rash and negligent driving of the petitioner. The FIR was lodged.

On conclusion of investigation the challan was submitted in the Court. The notice of accusation was put to petitioner for offences punishable under Sections 279, 337, 338, 304A IPC. The petitioner pleaded not guilty and claimed trial. The prosecution has examined fifteen witnesses and produced some documents. The statement of petitioner was recorded u/s 313 Cr.P.C. In his statement the petitioner has admitted that on 6.11.2001, he was driving the vehicle No. HP-48-5578. He denied his negligence. The petitioner did not deny the accident. In his statement he has stated that brakes were not working, the vehicle dashed against parapet and caused accident. The petitioner did not lead any evidence in defence. The learned Chief Judicial Magistrate on conclusion of trial convicted and sentenced the petitioner as noticed above. The appeal filed by petitioner was dismissed by learned Addl. Sessions Judge, Fast Track Court on 20.9.2006, hence revision.

Heard and perused the record. The learned counsel for the petitioner has stated that the two Courts below have erred in convicting and sentencing the petitioner. The evidence has been misconstrued and misinterpreted. The view taken by two Courts below is not possible from the evidence on record. The submission has been made for setting aside the conviction of the petitioner, in alternative submission for lenient view on the quantum of sentence has been made. The learned Addl. Advocate General has supported the impugned judgment and has submitted that two Courts below have rightly appreciated the evidence on record. She has prayed for dismissal of the revision.

PW-1 Parveen Kumar is a witness of recovery of vehicle No. HP-48-5578 alongwith documents including driving licence Ex.P-1. PW-2 Dharam Chand son of Punu Ram has stated that nothing happened in his presence. He was declared hostile and was cross-examined by the prosecutor. He denied that petitioner was driving the vehicle negligently, as a result of which, vehicle turned turtle. He denied having made statement A to A of mark X under

Section 154 Cr.P.C. PW-3 Dr. V.K. Pathak has stated that on 7.11.2011 he issued reports Ex.SK1 and Ex.SK2 which revealed fractures.

PW-4 Dr. Shalini, Dental Surgeon has stated that she had examined Dharam Chand, found certain injuries and issued report Ex.PW-4/A. PW-5 Lekh Raj is the photographer who has proved photographs Ex.P-1, Ex.P-2, negatives Ex.P-3 and Ex.P-4. In cross-examination he has stated that these photographs were taken by him in Industrial Area, Sultanpur which is at a distance of 5/6 K.M. from Gajnuin.

PW-6 Jaisi Ram has stated that he has been working in PWD as a labourer. In the year 2001 he was working on road at Gajnuin. There were 5/7 other workers working with him. All of them were working on Gajnuin bridge. A vehicle from Chamba came and turned turtle. He also sustained injuries. He cannot identify the person who was driving the vehicle. The vehicle turned turtle due to negligence of the driver. In cross-examination he has stated that he does not know what was the fault of the driver.

PW-7 Beli Ram has stated that in the year 2001 he was working as Mate at Gajnuin. On 6.11.2001 the labourers were working at Gajnuin bridge. A vehicle came and turned turtle. There were in all 20/22 persons who were working. A boy was driving the vehicle but he cannot identify him. He was declared hostile and was cross-examined by the prosecutor. In the cross-examination he has stated that he disclosed the name of the accused present in the Court. He denied that the accident took place due to the negligence of the driver. The portion A to A of mark X is incorrect.

PW-8 Nidiya Ram has stated that on 6.11.2011, 20/22 workers were working at Gajnuin bridge. A vehicle from Chamba side came in high speed and was not being controlled properly; the labourers started running here and there and sustained injuries. He does not know who was driving the vehicle. He was declared hostile and was cross-examined by the prosecutor. In the cross-examination he has stated that Mohan Lal died in the accident. He said that he does not know the accused was driving the vehicle. The vehicle was in high speed, as a result of which it fell down. In the cross examination conducted on behalf of the accused he has stated that he does not know what was the speed of the vehicle.

PW-9 Kamal Naresh, SDO, PWD, Chamba Division No. 2 has stated nothing about the accident. PW-10 Tilak Raj ASI, Police Post, Sultanpur has stated that on 6.11.2001 at about 4.15 p.m. a telephonic information was received that an accident had taken place at Gajnuin. He reached the spot. Statement of Dharam Singh son of Punu Ram was recorded which is Ex.PW-10/A, on that basis FIR Ex.PW-10/B was recorded. The spot map Ex.PW-10/C was prepared. The petitioner was arrested. In cross-examination he has denied that he has not correctly recorded the statements of the witnesses.

PW-11 Dr. S.K. Mahajan, Zonal Hospital, Chamba has stated that on 9.11.2001 Dharam Chand was referred to him from Zonal Hospital, Chamba. On MLC Ex.PW-4/A he gave his opinion Ex.PW-11/A. PW-12 Dr. Arun Kumar Tanglikar has stated that on 6.11.2011 he had examined several persons and issued their MLCs Ex.PW-12/A to Ex.PW-12/K which bear his signatures. PW-13 Hem Raj has stated that nothing happened in his presence. He was declared hostile and was cross-examined. In the cross-examination conducted by the prosecutor he has stated that the accident had already taken place when he reached the post. He carried the injured in his Tempo to hospital. He denied that the accident took place due to the negligence of the accused. PW-14 Jai Parkash, Mechanic has stated that he conducted the mechanical examination of vehicle No. HP-48-5578 and issued report Ex.PW-14/A. In cross-examination he has stated that he had not gone to the spot. He conducted the mechanical examination of the vehicle in Juice Factory, Sultanpur.

PW-15 Dharam Chand son of Kehar Singh has stated that on 6.11.2001 he had come to Mangla for collecting the payments of other persons, Ajay Kumar was driving the vehicle which turned turtle at Gajnuin. In the accident several persons had sustained injuries. He sustained injuries on the eye, teeth and he lost vision in one eye. The accident took place due to the negligence of the accused. The injured were taken to the hospital.

The petitioner in his statement u/s 313 Cr.P.C. admitted that he was driving the vehicle on the relevant date and time but he denied that accident took place due to his negligence. According to him the accident took place due to non working of the brakes.

13 Ex.PW-10/B is the FIR on the basis of statement u/s 154 Cr. P.C. Ex.PW-10/A of Dharam Chand son of Punu Ram. Ex.PW-10/C is the spot map. The petitioner has not denied the accident and injuries sustained by the injured, therefore, it is not necessary to refer to documents of the vehicle and medical evidence etc. Ex.P-1 and Ex.P-2 are the photographs of the vehicle. Ex.PW-14/A is the mechanical report of vehicle No. HP-48-5578 indicating the vehicle was inspected on 7.11.2001 at Sultanpur and the brakes of the vehicle were found proper.

PW-10 Tilak Raj, ASI has proved Ex.PW-10/A statement of PW-2 Dharam Chand u/s 154 Cr. P.C, but PW-2 Dharam Chand in his cross-examination conducted by prosecutor has denied that accused was driving the vehicle in high speed and for that reason it turned turtle. He has stated that portion A to A of mark X which was later on exhibited as Ex.PW-10/A is incorrect. The FIR Ex.PW-10/B has been registered on the basis of Ex.PW-10/A. The complainant PW-2 has not supported the prosecution when he said that portion A to A of mark X which was later on exhibited as Ex.PW-10/A is incorrect.

PW-6 Jaisi Ram who claimed that he was present on the spot at the time of accident has stated in cross-examination that he does not know what was the fault of the driver. PW-7 Beli Ram is the Mate who also claimed that he was present on the spot at the time of accident. In cross-examination conducted by the prosecutor he has stated that it is wrong to suggest that accident took place due to the fault of the driver. He also said that portion A to A of mark X which was later on exhibited as Ex.PW-10/A is incorrect.

PW-8 Nidyia Ram was declared hostile. He has stated that he does not know whether accused was driving the vehicle. In his statement he has stated that accident took place due to the negligence of the accused. PW-13 Hem Raj has stated that when he reached the spot accident had taken place. PW-15 Dharam Chand who was occupant of the jeep has stated that accident took place due to the negligence of the accused but he has not stated in what manner the driver was negligent in driving the vehicle whether accident took place due to high speed or driver could not control the vehicle due to any reason.

The petitioner has taken the plea that accident took place due to failure of brakes of the vehicle. The prosecution has relied mechanical report Ex.PW-14/A indicating that brakes of the vehicle were proper. The prosecution case is that accident took place at Gajnuin bridge. It appears the vehicle in question was taken to Sultanpur after the accident. PW-5 Lekh Raj has proved the photographs Ex.P-1, Ex.P-2 of the vehicle. The prosecution case is that vehicle turned turtle at the time of accident. The photographs Ex.P-1, Ex.P-2 show that vehicle in question at the time of taking photographs was on its wheel properly on the road. PW-5 has stated that these photographs were taken at Sultanpur which is at a distance of 5/6 K.M. from Gajnuin.

Ex.PW-14/A mechanical report is based on inspection of PW-14 on 7.11.2001 at Sultanpur. It is thus, clear that vehicle in question was not mechanically examined at the place of accident but it was examined at Sultanpur which is at a distance of 5/6 K.M. from the place of accident. The possibility cannot be ruled out that before taking the vehicle from the place of accident to Sultanpur its brakes were set in order and only thereafter it was taken to Sultanpur. In any case the vehicle was not inspected by the expert at the place of accident, there is possibility of tampering of the brakes system of the vehicle before the vehicle was taken to Sultanpur from the place of accident. Hence, mechanical report Ex.PW-14/A cannot be used by the prosecution against petitioner to show that brakes system of the vehicle was in order before the accident.

PW-8 and PW-15 have stated that accident took place due to negligent driving of the petitioner but they have not stated material facts in their statements how the petitioner was negligent. The high speed and lack of control of vehicle stated by PW-8 could be due to non working of brakes. Therefore, much significance cannot be given to the statements of PW-8 and PW-15 when other eye witnesses have not stated regarding the negligence of the petitioner. On the contrary almost all other witnesses giving ocular version have stated that petitioner was not negligent. The Courts below have invoked the principle of res ipsa Loquitur for convicting and sentencing the petitioner.

In Syad Akbar Vs. State of Karnataka, , the Supreme Court after noticing two approaches in the application and effect of maxim res ipsa loquitur has held as follows:

In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are: Firstly, in a criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz., the proof, in Civil and Criminal proceedings. In Civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in Criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecution (1937) 2 All ER 552 : 1937 AC 576 "simple lack of care such as will constitute civil liability, is not enough" for liability under the Criminal Law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied ''reckless'' most nearly covers the case.

In Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh, the Supreme Court has held as follows:

It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.

The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer.

In State of Karnataka Vs. Satish, , the respondent was convicted for offences punishable under Sections 279, 337, 338, 304A IPC. The conviction and sentence of the respondent was set aside by learned Addl. Sessions Judge u/s 279 IPC but his conviction and sentence was confirmed for offences under Sections 304A, 337, 338 IPC. The lower Courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. The High Court set aside the conviction and sentence of the respondent and he was acquitted. The Supreme Court has held as follows:

4 Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

23 In the present case, there is no legal evidence on record to show that accident took place due to rash and negligent driving of the petitioner. The learned Addl. Sessions Judge, Fast Track Court has wrongly invoked the principle of res ipsa loquitur in convicting and sentencing the petitioner. The defence has taken the stand that accident took place due to brake failure. The spot map Ex.PW-10/C indicates that vehicle turned turtle at point-A after striking the side of the bridge. The possibility cannot be ruled out that due to brake failure the vehicle struck against the side of the bridge and turned turtle. In that situation the petitioner cannot be blamed for the accident.

In Krishnan and another Vs. Krishnaveni and another, the Supreme Court has held as follows:

The object of Section 483 and the purpose behind conferring the revisional power u/s 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power u/s 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.

In view of above pronouncement of the Supreme Court, it is the duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its juridical process or illegality of sentence or order. The two Courts below have wrongly returned the findings that accident took place due to rash and negligent driving of the petitioner. The conviction and sentence of petitioner recorded by the two Courts below are not sustainable.

In view of above, the revision is allowed. Judgment dated 20.9.2006 passed by learned Addl. Sessions Judge, Fast Track Court, Chamba in Cr. Appeal No. 4/05/03 is set aside. The petitioner is acquitted of the accusation and his bail bonds are discharged. The fine amount, if any deposited by petitioner be refunded to him. Cr. MP No. 862 of 2009 is disposed of with the observation that the petitioner shall be at liberty to file appropriate application to the trial Court for return of driving licence. On such application filed by petitioner, the trial Court shall dispose of said application in accordance with law.